Is Dakota Fanning in kiddie porn?

Is Dakota Fanning in Kiddie Porn?

Children having sex on the silver screen.

Hounddog premiered at the Sundance Film Festival Monday, despite controversy over its depicted rape of a character played by 12-year-old Dakota Fanning. Online petitions have demanded the arrest of Fanning's mother and agent, alleging that the film could be considered child pornography and asking federal prosecutors to investigate the matter. Is Hounddog kiddie porn?

Torie Bosch is the editor of Future Tense, a project of Slate, the New America Foundation, and Arizona State that looks at the implications of new technologies.

No—it's free speech. According to federal law, you're not allowed to show anyone under the age of 18 engaging in a sexual act. You're also forbidden from creating a scene that even appears to depict a real kid having real sex; in legalese, you're in trouble if "an ordinary person viewing the depiction would conclude that the depiction is of an actual minor engaged in sexually explicit conduct." (Similar rules can be found in the penal codes for California, which governs most big-budget Hollywood productions, and North Carolina, where Hounddog was filmed.) Hounddog does contain a sex scene involving a real-life minor. But for the film to run afoul of the law, an average viewer would have to think that Dakota Fanning really did engage in sexual intercourse on the set during production.

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A prosecutor hunting for a kiddie porn conviction would have to make this argument despite the fact that mostpeople know that sex acts in mainstream movies are almost always mimed. Furthermore, the controversial "rape" in Hounddog takes place off-screen: According to writer/director Deborah Kampmeier, "you have a child yelling 'Stop it!' and only when you put that next to an image of a boy unzipping his pants do you see that it's rape."

If the filmmakers had included a very explicit sex scene—showing on-screen penetration, for example—they'd be in trouble. The movie would be illegal even if they used consenting adult actors and then digitally superimposed Fanning's face onto the woman's body. As long as the average viewer might be duped by the special effect, the scene would be child pornography. (The law doesn't apply to a child character that's 100-percent computer-generated—a laJarJar Binks or S1m0ne—as long as it's not supposed to look like a real, identifiable kid.)

A prosecutor might take a different tack and go after the film for the scenes in which Fanning appears to be nude on-camera. But that would be illegal only if the filmmakers intended the naked scenes to be sexy and stimulating. In any case, the film never shows Fanning in the nude; she always wore a flesh-colored suit while on set, and her genitals were never on display for any reason, prurient or not. Fanning's vocal defense of the film might also be taken into consideration: Child pornography laws are meant to protect children from exploitation, and she does not consider herself a victim.

Because Hounddog wouldn't be considered child pornography under federal law, a prosecutor could try to prove that it's obscene under the rules set out by the 1973 case Miller v. California, in which a pornographer appealed his conviction for distributing obscene material on First Amendment grounds. The Supreme Court ruled that a work is obscene only if it offends community standards, appeals to prurient interests and lacks "serious literary, artistic, political, or scientific value." Since Hounddog deals with poverty and child abuse, it would be difficult to call it bereft of serious artistic value.

Similar uproars surrounded Brooke Shields' portrayal—at age 12—of a child prostitute in Pretty Baby, and Adrian Lyne's 1997 remake of Lolita. Actress Natalie Portman turned down the title role in Lyne's film, saying, "I don't think there needs to be a movie out where a child has sex with an adult." Lyne ran into further problems when potential distributors fretted over a 1996 law that contained more strict rules against simulated child sex. (You couldn't show any character appearing to be a child, real or not, in any sexual situation meant to be arousing.) The Supreme Court declared those rules unconstitutional in 2002.